Wednesday, April 11, 2012

It is becoming very fashionable for progressives to denounce Florida's Stand Your Ground rule and to describe it as a possible bar to a successful prosecution of George Zimmerman. As I have previously explained, there are numerous problems with this argument. First, it misstates the requirements of the Stand Your Ground rule. Second, it assumes that Trayvon Martin was the initial aggressor rather than George Zimmerman.

Despite the faults in the progressive critiques of Stand Your Ground, Think Progress has published a new blog entry which contends that Florida law gives individuals more leeway to use deadly force than members of the armed services. Jon Soltz, the founder and chairman of VoteVets.org, wrote the essay. Soltz argues that the

U.S. military issues Rules of Engagement (ROE) for every conflict to guide servicemembers’ ability to protect themselves from deadly threats while responding only with the necessary and proportionate level of force in a dangerous situation.

He then analyzes an ROE issued in 2007 during the Iraq invasion. The rule requires the use of "graduated force" when a servicemember faces a "hostile act" or "hostile intent." Soltz lists four steps in this graduated approach:

Soltz then describes an incident during which a US servicemember shot a fleeing detainee; the detainee died from the injury. The servicemember violated the ROE because the person he shot did not pose a risk, because he was fleeing and unarmed. The servicemember was charged for the violation (although he was later injured and never faced a court martial).

Soltz argues that by removing the "duty to retreat" prior to using force, Florida's Stand Your Ground rule lacks a requirement to deescalate; thus, Florida law allows for more immediate use of deadly force than the military. Furthermore, Soltz criticizes Florida law for (he claims) immunizing a suspect who uses deadly force simply "if he believe[s] he had been threatened with deadly force" or who merely claims "I thought someone was threatening."

Finally, Soltz expresses his dismay that Zimmerman has escaped an arrest by "simply claiming that he felt threatened by Trayvon, regardless of whether that was an objectively reasonable response to the situation or if he took steps to avoid a deadly confrontation." For several reasons, Soltz's analysis is absolutely wrong.

Soltz Misinterprets Florida Law
I assume that Soltz wrote his essay before the media reported that an arrest of Zimmerman seems imminent. Holding that aside, Soltz's essay misinterprets Florida law. Soltz correctly states that the Stand Your Ground eliminates the common law duty to retreat that is an element in most state self-defense laws. So, under Florida law, a person can generally use self-defense without trying to escape the threat.

The list of graduated factors that Sholtz provides, however, does not contain a duty to retreat either. Furthermore, despite the fact that Florida has eliminated the duty to retreat, Soltz incorrectly asserts that Florida law, unlike military regulations, allows for the use of force regardless of whether it is reasonably necessary. Contrary to Soltz's assertion that a defendant can avoid arrest by simply stating that he "believed" he faced lethal force or that he "thought" someone was threatening, Florida law requires that the person have a reasonable fear of harm. This means that the individual's subjective state of mind is not the baseline. Instead, a reasonable person under the circumstances must fear the threat. Accordingly, under Florida law, as in the military, a person who shoots a fleeing unarmed individual has likely committed a crime. It is difficult to argue that the assailant reasonably feared deadly force or serious bodily injury.

Second, Florida law requires that the use of force be proportionate to the harm. This rule applies in every state -- even those with Stand Your Ground provisions. Consequently, deadly force is only permissible under extremely limited circumstances -- either to avoid serious bodily injury or the application of lethal force by the victim. Thus, Florida law does not authorize a person to "shoot to kill" whenever he or she believes that lethal force is appropriate. Instead, the law provides parameters around the use of lethal force.

Soltz Assumes That Trayvon Martin Was The Initial Aggressor
Soltz's essay also misapplies Stand Your Ground to the developing facts of this case. Florida law clearly states that an initial aggressor has a duty to retreat. In other words, the individual who provoked the confrontation cannot take advantage of the Stand Your Ground rule. I have written extensively on this subject in prior blog posts (and have cited and quoted the relevant statutory language).

Admittedly, the evidence at this stage is very sketchy. But, it appears from 911 recordings that Zimmerman first followed Martin in his car. Zimmerman called 911 and said that Martin was "up to no good" and that he appeared to be "on drugs." Zimmerman also used profanity and possibly a racial epithet to describe Martin during the 911 call. Next, Zimmerman left his car and pursued Martin on foot with a loaded gun -- despite the dispatcher advising him not to do so.

Telephone records indicate that Martin was having a conversation with his girlfriend moments before his death, which suggests that he was not provoking Zimmerman into a confrontation. Indeed, Martin's girlfriend has said that he expressed to her that he was frightened and that Zimmerman was following him. She also said that Zimmerman approached Martin and shoved him. Under these facts, Zimmerman seems to have initiated the aggressive contact. Martin was simply walking home. Zimmerman was playing police officer and trying to prevent another "asshole" from "getting away."

If Zimmerman was the initial aggressor, he cannot claim a right to stand his ground. Instead, he should have tried to avoid the conflict by leaving if possible or by indicating to Martin that he meant no harm and that he did not want to continue the offense. Furthermore, if Zimmerman was in fact the initial aggressor, then Martin had the right to stand his ground and defend himself from Zimmerman. Thus, the fact that Zimmerman possibly sustained injuries inflicted by Martin does not excuse his decision to kill the teenager.

Soltz, like so many other progressive commentators, assumes that Martin -- the unarmed black teenager -- was the initial aggressor. These commentators either misunderstand Florida law or they cannot imagine Martin being the victim, rather than the aggressor. I would like to hear Soltz explain which of these factors led him to misapply the Stand Your Ground rule in this case.

13 comments:

I think that the point of a lot of this coverage is that the Stand Your Ground law allows law enforcement to avoid prosecuting individuals, rather than whether they are actually legally culpable. Law enforcement and the prosecutor can use their discretion whether or not to believe the survivor on who the initial aggressor was. This allows racism (or sexism, homophobia, etc.) to enter into the discretionary phase.

I haven't seen the specific coverage referred to here, but my suspicion is that "progressives" don't generally misunderstand the way the law works. I suspect that some journalists are misconstruing other coverage of the subject and drawing the wrong conclusions. In other words, sloppy journalism / analysis.

UNKNOWN: Hate to say it, but there is an extreme amount of misinformation about the way this law works. Take for example, the common assertion that "stand your ground" allows you to use lethal force to defend yourself (and isn't that terrible). Self-defense in every state allows you to do that. It has nothing to do with stand your ground.

Also, the article that I have cited absolutely argues about legal culpability. Furthermore -- law enforcement and prosecutors have absolute discretion to enforce the law. There's no such thing as a mandatory prosecution. Some states have created mandatory arrest policies -- as in domestic violence -- but even these rules might not guarantee an arrest.

Nell - Having read about this prosecutor, I do not think she will offer a plea - unless there is some weakness in the evidence or it's so strong, she can get Zimmerman to accept a pretty lengthy sentence. Under these circumstances, second-degree isn't that big. Remember, they will charge high, but the jury might go for the lesser-included offense (manslaughter).

I don't disagree that there is a substantial amount of mis-information about the way Stand Your Ground principles work, legally speaking. I just think that there is a broader point that is being made that the existence of the law creates a an avenue for biased law enforcement officials to use to avoid prosecuting individuals that they are sympathetic to.

Ri Scott - I just addressed that same issue. The article to which I am responding does not mention that anywhere. Furthermore, most of the SYG commentary has argued that it widely expands the availability of self-defense - not that it shields racist prosecutors and cops. Regardless of SYG, cops and prosecutors have unbridled discretion to arrest/prosecute. And it is virtually impossible to bring a successful lawsuit alleging selective prosecution or arrest. So, the availability of SYG really does not create this discretion. It exists in every case.

For the record, I do not support SYG. But I also disagree with misstating the substance of the provision as a means of drumming up opposition. I think many progressives have simply repeated the same argument. Noticeably absent from their commentary: quotations from the statute itself.

The worst part of the self-defense law has nothing to do with SYG at all. It is the provision that requires the prosecutor to show probable cause that the self-defense argument is false. This is required simply to get in the courthouse. This is not SYG. This is immunity from prosecution, unless the prosecutor can disprove the defense at a very early stage -- and without a jury determining the facts. That's pretty ridiculous. Much more than SYG.

Also, the opposite of SYG is the "duty to retreat." Even in a DTR state, the prosecutor has to show that the defendant had a reasonable ability to retreat. The law doesn't require you to retreat at all costs. So, even if the prosecutor says that you could have simply run away, the defendant can argue that he reasonably believed that the defendant would not have allowed it, or some other factor that counseled against trying to escape. In other words, SYG's impact of self-defense is highly exaggerated by progressives. And I say this as a progressive who disagrees with the rule.

... Senate Bill 436 also created section 776.032 of the Florida Statutes. 46 This section provides that a person who is permitted to use deadly force under sections 776.012,776.013, and 776.031 receives immunity from “criminal prosecution and civil action for the use of such force.” 47 The immunity from criminal prosecution includes immunity from arrest, detention in custody, and charges orprosecution of the individual for using deadly force. 48 Section 776.032(2) of the statute further states that “[a] law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause thatthe force that was used was unlawful.” 49

Indeed, the Florida House of Representatives specifically rejected an amendment by Representative Seiler that would have made the presumptions rebuttable with other evidence. 66 The courts have followed the legislature'slead. A Florida appellate court has interpreted the presumptions to be conclusive. 67 In State v. Heckman, the Florida Second District Court of Appeal stated that the presumptions were irrebuttable, citing to the SenateCommittee's Staff Analysis 5-6 from February 25, 2005. 68

Serfing USA - that's the provision I discussed - the one that is the worst. But that immunity does not attach simply because someone says he or she needed to use force. Instead, the person has to show cause to use force; the prosecutor can rebut this by showing that there is probable cause to reject the defense of self-defense. REGARDLESS, that is not "Stand Your Ground." That is an immunity provision. This provision could just as well appear in a statute that has a Duty to Retreat rule. Don't confuse the two issues.

Serfing USA - I think you are referring to another part of the statute. The statute lists moments -- none relevant in this case -- where there is an irrebuttable presumption that the defendant had a reasonable fear. But, as I said, these situations -- robbery, etc. -- do not apply in this case! Also - the provision you list is NOT a stand your ground rule. Instead it is a presumption of fear rule. Stand your ground simply means you have no duty to retreat. It does not alter the requirement of reasonable fear and proportional use of force.

picking on think progress (other then when they serve as a specific example of a general trend) is beneath you, cause TP is so inept.Not just inept, but worse then useless: almost all they do is criticism of the right wing, they almost never have a positive agenda

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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